May 19, 2015

S. 1357 – Reauthorization of Three Expiring FISA Provisions

 Noteworthy

Floor Situation: This bill has been placed on the Senate calendar by the Rule 14 process.

Executive Summary: The Intelligence Reform Act of 2004 and the Patriot Act made certain amendments to the Foreign Intelligence Surveillance Act. Three of those provisions are expiring on June 1, 2015: Patriot Act section 215 (the business records provision); Patriot Act section 206 concerning roving wiretaps; and a provision regarding “lone wolf” terrorists. This bill extends the authorization of these provisions for two months to July 31, 2015.

The government has confirmed it acquires telephone metadata in bulk under section 215. National security experts have said such a program could have prevented the September 11, 2001, terrorist attacks.

The Supreme Court has said that acquisition of telephone metadata is consistent with the Fourth Amendment. There is robust oversight of this program by all three branches of government. The congressional committees with jurisdiction are focused on it, and the FISA court (an article III court) must reauthorize it every 90 days. Terminating or changing the program is not constitutionally compelled – it is strictly a policy choice whether to constrain the intelligence community and an intelligence program.

Overview of the Issue

Section 215 – Business records provision

Section 215 of the Patriot Act authorizes the government to apply for an order from the FISA court requiring the production of “tangible things” needed in the course of collecting foreign intelligence in connection with a terrorism investigation. The government has confirmed it acquires telephone metadata in bulk under this statutory authority. Beginning in 2006, the government has applied for an order from the FISA court every 90 days authorizing this program.

Mike Morrell, the former acting director of the CIA and member of the President’s Review Group on Intelligence and Communications Technologies, has written that if this intelligence tool had “been in place more than a decade ago, it would likely have prevented 9/11.” When Senator Feinstein was chair of the Intelligence Committee, she said: “I strongly believe that the telephone call records program under the Section 215 Business Records provision reduces the chance of another 9/11-type attack on our homeland. In fact, the call records program has played a role in stopping roughly a dozen terror incidents in the United States. … To end the program at this time will substantially increase the risk of another catastrophic attack on the United States.”

The Director of National Intelligence has pointed out that metadata is the “only” type of information collected under this particular program. Metadata has nothing to do with the content of the phone call, but rather relates to the “telephone numbers dialed [or] length of calls.”

The Supreme Court has made clear this acquisition of telephone metadata is perfectly consistent with the Fourth Amendment. The Fourth Amendment protects against “unreasonable searches.” A search occurs for the purposes of Fourth Amendment analysis when the government intrudes upon “a reasonable expectation of privacy.” The Supreme Court has noted “it has consistently held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Specifically, with respect to this program, the Supreme Court has squarely determined that a person does not have a Fourth Amendment protected privacy interest in the numbers he dialed on his phone. A person making a telephone call knowingly conveys to a third party, i.e., the telephone company, the number he is calling so the company can complete the call and maintain that number called for billing purposes. To be sure, the third party doctrine is highly criticized. One scholar has said “[a] list of every article or book that has criticized the doctrine would [amount to] the world’s longest law review footnote.”

The scale and quantity of data acquired by court order has no bearing on the constitutional analysis. The Fourth Amendment protects against “unreasonable searches.” For that protection to apply, a search must actually occur, and the third-party doctrine as just described makes clear a search has not occurred in this instance. Reasonable expectations of privacy do not turn on the quantity of phone records obtained. Those records do not involve content of the call. Given the type of information covered, and the manner in which the government acquires it – from a third party – it does not implicate the constitutional analysis whether the government acquires one telephone record from a phone company or many days’ worth of records.

The recent Supreme Court ruling in Riley is not to the contrary. When an law enforcement officer makes an arrest, he can without a warrant make a search incident to that arrest for limited purposes, namely for officer safety or to protect against evidence being concealed or destroyed. The court in Riley ruled that if an arresting officer seizes the suspect’s cell phone in the course of an arrest, a warrant is required to review it. The court specifically said that case does not “implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.”

There is significant oversight of these programs by all three branches of government:

  1. Executive: NSA itself and the Department of Justice National Security Division are jointly responsible for monitoring NSA compliance with FISA court orders covering this program.
  2. Legislative: Using the numerous reports it receives from the executive on this matter and its own oversight investigations, the relevant congressional committees have robust oversight of this program. The Senate Intelligence Committee has said “a central focus” of its oversight has been over this particular program.
  3. Judicial: The Foreign Intelligence Surveillance Court must issue an order authorizing this program every ninety days. The government files monthly reports with the Court on how the program is carried out.

In February 2011, the Department of Justice asked the Senate Intelligence Committee chairman and ranking member to provide information to all Senators regarding the “bulk collection programs” that were taking place under Patriot Act section 215. This means all Senators were on notice of these programs when voting to reauthorize these provisions in May 2011. Patriot Act section 215 was reauthorized without change.

When this program was compromised, instead of standing by the program he authorized, the president announced his intention to terminate it. He then made certain changes to constrain the operation of the program and called on Congress to provide a replacement. He continues to reauthorize the revised program every 90 days, most recently on February 27, 2015. The statutory authority to conduct such a program expires on June 1. This bill would extend that authority for two months to July 31, 2015.

Section 206 – Roving wiretaps

The provisions of Section 206 of the Patriot Act allow for “roving” electronic surveillance of people who, when they switch phones to evade being surveilled, also switch service providers for the phone. These provisions were created to correspond to similar roving authorities in traditional law-enforcement surveillance where a target switches phones to thwart investigation.

As is the case in an ordinary FISA surveillance case, applications for roving surveillance require a showing of probable cause that a target of the surveillance is a foreign power or an agent of a foreign power who uses a telephone or similar facility. In roving surveillance cases, however, the government also demonstrates to the FISA court that the target of the investigation is likely to switch phones to thwart surveillance. In these cases, the court issues orders to direct unspecified people to assist the government in surveilling the target. Thus, when a target changes telephone service providers, the government is able to continue its investigation without having to have a new order issued by the FISA court. Under section 206, the government is required to notify – and demonstrate probable cause to – the FISA court within 10 days of the surveillance directed at the new service provider.

Lone Wolf

The “lone-wolf” provision allows the government to surveil non-U.S. people engaged in international terrorism without demonstrating that the target is affiliated with a particular international terrorist group. These simplified evidentiary requirements enable the government to pursue people involved in international terrorist activity even though probable cause is not established to demonstrate that the activity is being done on behalf of a foreign entity. This provision allows for the collection of information about a foreign terrorist who is inspired by – but not a member of – a terrorist group.

As Secretary of Homeland Security Jeh Johnson noted, there is a “new phase in the global terrorist threat where the so-called ‘lone wolf’ could strike at any moment.” Many of these threats are self-radicalized, where a person acts out based upon international terrorist recruitment and training on the internet. In such cases, there is not a nexus to any terrorist group. Not all lone wolf terrorists are foreign born. But where cases arise like that of the Tamerlan Tsarnaev, where a non-U.S. citizen is planning a terrorist attack, it would likely be more difficult to obtain surveillance authority without the lone wolf provision.

Notable Bill Provisions

This bill extends these three expiring provisions for two months, to July 31, 2015.

Administration Position

A Statement of Administration Policy with respect to this bill was unavailable at the time of publication.

Cost

There is likely no cost associated with this bill.

Amendments

The amendment situation is unclear at this time.